United States District Court, S.D. California
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE RE: GRANTING MOTION TO DISMISS PETITION FOR WRIT OF
HABEAS CORPUS [ECF NO. 9]
Ruben B. Brooks, United States Magistrate Judge.
Roldan, a state prisoner proceeding pro se and in forma
pauperis, filed a Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254 against Respondent Warren L.
Montgomery, Warden of Calipatria State Prison [ECF No. 1]. On
February 20, 2019, Respondent filed a Motion to Dismiss
Petition for Writ of Habeas Corpus [ECF No. 9], with an
attached Memorandum of Points and Authorities [ECF No. 9
Attach. #1], and a Notice of Lodgment [ECF No. 10].
Petitioner did not file an opposition. For the reasons set
forth herein, the Court RECOMMENDS that
Respondent's motion to dismiss be
GRANTED and the petition be
DISMISSED with prejudice.
was convicted of murder, three counts of attempted murder,
and assault with force likely to produce great bodily injury
in 1997. (Not. Lodgment Attach. #1 [Legal Status Summary], at
1, ECF No. 10.) He was sentenced to a prison term of
seventy-nine years to life with the possibility of parole.
following factual summary is taken from Correctional
Lieutenant P. Zills's July 18, 2016 report:
On Monday, July 18, 2016, at approximately 1115 hours,
Officer D. Acosta (A5 Floor Officer #1) and Officer R. Dubbe
(A5 Floor Officer #2) were conducting a search of cell
A1-235, jointly assigned to Inmate ALDANA (P28828, A1-235L)
and Inmate ROLDAN (K57092, A1-235U). During the course of the
search, Officer Acosta discovered a bindle wrapped in paper
and clear plastic. Upon opening the bindle there were
numerous other bindles containing black tar like substance.
Officer Acosta took the bindles to the Sub-Evidence Room
#430-144 for weighing and testing. Officer Acosta then
relinquished the bindles to Officer J. Manning (Facility
'A' Security Officer #2) for testing of the
substance, which tested positive for Heroin. There were a
total of 11 individual smaller bindles within the one bindle
discovered, with a total weight of 5.47 grams with packaging.
[¶] In addition to the discovery of the suspected
controlled substance[, ] Officer Dubbe discovered a cellular
Officer Manning, after testing the substance, approached
Inmate ALDANA with the results of the testing. Inmate ALDANA
refused to accept the results from the Narcotics
Identification Kit (NIK) Test. [¶] Officer Manning,
after testing the substance, approached Inmate ROLDAN with
the results of the testing. Inmate ROLDAN refused to accept
the results from the NIK Test. [¶] Officer Manning
ordered both inmates to submit urine samples for testing for
the presence of a controlled substance[;] both inmates
refused to submit urine samples for testing. [¶] CAL
Medical Staff completed a medical evaluation on Inmate ALDANA
and Inmate ROLDAN.
(Not. Lodgment Attach. #2, In re Roldan, No. S245962
(Cal. Sup. Ct. [filed Dec. 13, 2017]) (petition for writ of
habeas corpus), at 21, ECF No. 10.) Prison officials charged
Petitioner with violating section 3016(a) of Title 15 of the
California Code of Regulations for "Possession of a
Controlled Substance for Distribution (Heroin)" and
issued a Rules Violation Report ("RVR").
(Id. at 23, 43-47.)
Hearing Officer J. Coronado conducted a disciplinary hearing
on September 18, 2016. (Id. at 49.) He noted that
Roldan had received all pertinent documents, including a
preliminary copy of the RVR, within the requisite deadlines,
but the hearing did not take place within thirty days of the
issuance of RVR. (Id. at 39, 49.) The hearing
officer accordingly found a due process violation resulting
from not meeting the thirty-day time requirement and
determined that Roldan would not be assessed any loss of
credits. (Id. at 49, 57.)
called his cellmate, Victor Aldana, as a witness at the
hearing. (Id. at 57.) Upon questioning by
Petitioner, Aldana testified that the contraband found in the
cell belonged to him and that Roldan was not aware of it.
(Id.) Aldana also stated that he had purchased the
drugs three days prior to the cell search, kept the drugs in
a coffee jar in his locker for personal use, and used drugs
was questioned by the hearing officer and testified as
Q Whos[e] drugs were found in your cell?
A My cellies [sic], I had no knowledge there were drugs till
the cops told me.
Q Do you have priors for drugs?
Q Did you know your cellie is a drug user?
Q How long did you live with your ...